Miles Davis tattoo calls Ninth Circuit’s infringement test into question

The Ninth Circuit's en banc panel heard arguments Tuesday on whether to scrap its decades-old 'intrinsic test' for copyright infringement, which lets juries decide substantial similarity based on the subjective 'total concept and feel' of two works. The case stems from a 2024 jury verdict clearing tattoo artist Kat Von D of infringing photographer Jeff Sedlik's portrait of Miles Davis making a shush gesture.

Sedlik's attorney urged the court to replace the intrinsic test with an objective, side-by-side comparison of legally protectable elements only, but struggled when judges pressed for specifics on what a new jury instruction would even say. Von D's attorney countered that the jury likely ruled against Sedlik on both tests anyway, so tossing the intrinsic test wouldn't undo the verdict.

Judge Ryan Nelson asked why the circuit shouldn't drop a test essentially abandoned everywhere else in the country, while Judge Consuelo Callahan noted that laypeople who see the photo and tattoo assume infringement, suggesting the jury 'must have been told the wrong law.' Even if Sedlik wins on the legal test, the fair use question was never decided and may require a fresh trial.

The full dispatch is available from the source below.